Our Court of Appeal has today confirmed the inherent power of a court to suppress its judgments on an interim basis in order to protect the defendant's right to a fair trial: Siemer v Solicitor-General [2012] NZCA 188.
Dicta in this case [68]-[72] on the right to a fair trial are significant too. The defendants in the criminal case had the right to a fair trial and the court used its inherent power to regulate its procedures for the ultimate objective of securing fairness. However Mr Siemer, who was not subject to criminal proceedings but only to the "neither criminal nor civil" proceedings for contempt, did not have the protection of the rights given by the New Zealand Bill of Rights Act 1990 to people who are charged with offences [95]. But he did have the right to justice, enjoyed by everyone pursuant to s 27 of the Bill of Rights, which applies the rules of natural justice to the determination of his rights, obligations or interests.
This is a departure from Privy Council and House of Lords decisions: Independent Publishing Ltd v Attorney-General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190, Attorney-General v Leveller Magazine Ltd [1979] AC 440. Since the establishment of our Supreme Court, decisions of the Privy Council from other jurisdictions are of persuasive authority only [37].
The Court of Appeal held [91] that the same position on suppression orders applies under the Criminal Procedure Act 2011 ("CPA"). I will consider the other aspects of the judgment by reference to what the position should be after commencement of that Act.
Of equal interest is the Court's discussion of contempt proceedings. Sometimes contempt is an offence. This is when an enactment creates the offence and provides for a punishment. Provisions doing that, however, provide that they do not limit the power of a court to punish for contempt: see s 365(3) of the CPA.
Contempt that is punishable pursuant to the court's inherent power is probably not an "offence" although there is no definition of "offence" in the CPA except in the schedule where a definition is inserted in another act. In any event, the Court of Appeal accepted [96] that contempt proceedings outside those defined in an enactment are neither criminal nor civil proceedings, and they are not prosecuted by the laying of an information (nor, by implication, by the filing of a charging document under the CPA). Although the criminal standard of proof applies, these sorts of contempt do not result in a conviction but rather in a "finding" of contempt. Such a finding, and the sentence, may be appealed under the CPA, s 260.
If contempt outside the statutory definition is an offence, proceedings in respect of it should be commenced under the CPA by the filing of a charging document. However it is more likely that it is not an offence and the Solicitor-General commences proceedings for this sort of contempt by the filing of an originating application and supporting affidavits, and the defendant may answer by affidavit [93]. The criminal procedure of entering a plea does not apply.
In Siemer the appellant had published a judgment that the High Court had temporarily suppressed. That suppression order was designed to protect the right of defendants in a notorious criminal case to fair trials. As a result of losing the appeal the defendant was ordered to commence serving his sentence of six weeks in prison.
Dicta in this case [68]-[72] on the right to a fair trial are significant too. The defendants in the criminal case had the right to a fair trial and the court used its inherent power to regulate its procedures for the ultimate objective of securing fairness. However Mr Siemer, who was not subject to criminal proceedings but only to the "neither criminal nor civil" proceedings for contempt, did not have the protection of the rights given by the New Zealand Bill of Rights Act 1990 to people who are charged with offences [95]. But he did have the right to justice, enjoyed by everyone pursuant to s 27 of the Bill of Rights, which applies the rules of natural justice to the determination of his rights, obligations or interests.
